by Neal Katyal
In audio from a private event: Eli Stokols, “Listen: Audio of Trump Discussing Whistleblower at Private Event: ‘That’s Close to a Spy’—Los Angeles Times,” Los Angeles Times, September 26, 2019, https://www.latimes.com/politics/story/2019-09-26/trump-at-private-breakfast-who-gave-the-whistle-blower-the-information-because-thats-almost-a-spy.
The way “we” used to “handle”: Ryan Bort, “Oh, Nothing, Just Trump Fantasizing About Executing ‘Spies’ Behind the Whistle-Blower Complaint,” Rolling Stone, September 26, 2019, https://www.rollingstone.com/politics/politics-news/oh-nothing-just-trump-fantasizing-about-executing-spies-behind-the-whistleblower-complaint-891093/.
“I have an absolute right”: “Donald J. Trump on Twitter: ‘As the President of the United States, I Have an Absolute Right, Perhaps Even a Duty, to Investigate, or Have Investigated, CORRUPTION, and That Would Include Asking, or Suggesting, Other Countries to Help Us out!’ / Twitter,” Twitter, October 3, 2019, https://twitter.com/realdonaldtrump/status/1179925259417468928.
Trump brought this message: Kevin Breuninger, “Trump Says China Should Investigate the Bidens, Doubles down on Ukraine Probe,” CNBC, October 3, 2019, https://www.cnbc.com/2019/10/03/trump-calls-for-ukraine-china-to-investigate-the-bidens.html/.
Acting chief of staff: Savannah Behrmann, “‘Get Over It’: Trump campaign sells T-shirts following Mulvaney quid pro quo comments,” USA Today, October 18, 2019, https://www.usatoday.com/story/news/politics/elections/2019/10/18/get-over-it-trump-campaign-sells-t-shirts-mulvaney/4025702002/.
When Speaker Pelosi opened: Allan Smith and Geoff Bennett, “State Department Blocks Ambassador from Testifying in Trump Impeachment Inquiry,” NBC News, accessed October 17, 2019, https://www.nbcnews.com/politics/donald-trump/trump-administration-orders-ambassador-center-ukraine-scandal-not-appear-congress-n1063636.
“In order to fulfill his duties”: Ella Nilsen, “Read: The White House Letter Refusing to Comply with Democrats’ Impeachment Inquiry,” Vox, October 8, 2019, https://www.vox.com/policy-and-politics/2019/10/8/20905469/white-house-letter-democrats-impeachment-inquiry.
Executive privilege: Ibid.
3. The Case Against President Trump
As Alexander Hamilton wrote: Alexander Hamilton, The Federalist Papers: No. 65.
As you may recall: Julian Borger. “Mike Flynn at Risk of Russian Blackmail, Sally Yates Warned White House.” The Guardian, May 8, 2017. https://www.theguardian.com/us-news/2017/may/08/sally-yates-trump-russia-michael-flynn-blackmail-compromised.
At a news conference: Michael S. Schmidt. “Trump Invited the Russians to Hack Clinton. Were They Listening?” New York Times, July 13, 2018. https://www.nytimes.com/2018/07/13/us/politics/trump-russia-clinton-emails.html/.
before long John Podesta: Aaron Sharockman. “It’s True: WikiLeaks Dumped Podesta Emails Hour after Trump Video Surfaced.” PolitiFact (blog), December 18, 2016. https://www.politifact.com/truth-o-meter/statements/2016/dec/18/john-podesta/its-true-wikileaks-dumped-podesta-emails-hour-afte/.
In all, Mueller’s report delineated: The Editorial Board. “The Mueller Report and the Danger Facing American Democracy.” New York Times, April 19, 2019. https://www.nytimes.com/2019/04/19/opinion/mueller-report-trump-russia.html/.
These included a meeting: Allan Smith, “Mueller Declined to Charge Donald Trump Jr. for Meeting with Russian Lawyer,” NBC News, April 18, 2019, https://www.nbcnews.com/politics/donald-trump/mueller-report-no-evidence-trump-knew-about-trump-tower-meeting-n995816.
Regardless of what information: Robert Mueller III. “Report On The Investigation Into Russian Interference In The 2016 Presidential Election.” United States Department of Justice, 2019, 13. https://www.justice.gov/storage/report.pdf.
What’s worse: Associated Press. “Mueller Cites ‘efforts’ to Meddle in Election.” PBS, May 20, 2019. https://www.pbs.org/newshour/politics/mueller-cites-efforts-to-meddle-in-election.
Russia’s interference in 2016: Cynthia McFadden, William M. Arkin, and Kevin Monahan. “Russians Penetrated U.S. Voter Systems, Top U.S. Official Says.” NBC News, February 7, 2018. https://www.nbcnews.com/politics/elections/russians-penetrated-u-s-voter-systems-says-top-u-s-n845721.
In fact, according to the Washington Post : Shane Harris, Josh Dawsey, and Ellen Nakashima. “Trump Told Russian Officials in 2017 He Wasn’t Concerned about Moscow’s Interference in U.S. Election.” Washington Post, September 27, 2019. https://www.washingtonpost.com/national-security/trump-told-russian-officials-in-2017-he-wasnt-concerned-about-moscows-interference-in-us-election/2019/09/27/b20a8bc8-e159-11e9-b199-f638bf2c340f_story.html/.
As Gouverneur Morris: “Madison Debates,” Ibid.
For this reason: Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment, 33.
As far as the founders were concerned: Ben Berwick, Justin Florence, and John Langford. “The Constitution Says ‘Bribery’ Is Impeachable. What Does That Mean?” Lawfare (blog), October 3, 2019. https://www.lawfareblog.com/constitution-says-bribery-impeachable-what-does-mean.
In the weeks after news broke: Bribery of public officials and witnesses, § 201(b)(1). https://www.law.cornell.edu/uscode/text/18/201.
Indeed, the mayor of Detroit: Ed White. “Former Detroit Mayor Sentenced to 28 Years for ‘pay-to-Play’ Bribery.” NBC News, October 11, 2013. https://www.nbcnews.com/news/us-news/former-detroit-mayor-sentenced-28-years-pay-play-bribery-flna8C11368978.
The first came: “Full Document: Trump’s Call With the Ukrainian President,” New York Times, September 25, 2019, sec. US, https://www.nytimes.com/interactive/2019/09/25/us/politics/trump-ukraine-transcript.html/.
That’s why House leader Kevin McCarthy: Scott Pelley. The Impeachment Inquiry: Nancy Pelosi, Kevin McCarthy, and Adam Schiff. 60 Minutes, September 30, 2019. https://www.cbsnews.com/news/nancy-pelosi-on-trump-impeachment-inquiry-ukraine-president-phone-call-and-the-whistleblower-in-60-minutes-interview/.
Ross Spano: Veronica Stracqualursi. “Quid pro Quo: What It Means.” CNN Politics, September 27, 2019. https://www.cnn.com/2019/09/26/politics/quid-pro-quo-trump-ukraine-call/index.html/.
And in a text exchange: Karoun Demirjian, Rachael Bade, Josh Dawsey, and John Hudson. “Officials’ Texts Reveal Belief That Trump Wanted Probes as Condition of Ukraine Meeting.” Washington Post, October 4, 2019. https://www.washingtonpost.com/world/national-security/this-is-when-the-inquiry-gets-real-former-us-special-envoy-to-ukraine-testifies-in-impeachment-probe-today/2019/10/03/51365c1b-5a01-4e44-872a-299b67949a5e_story.html/.
On the call itself: “Read Trump’s phone conversation with Volodymyr Zelensky,” CNN Politics.
In his conduct of the office: “Articles of Impeachment Against President Richard Nixon.” House Judiciary Committee, July 27, 1974.
In all, Article I: Ibid.
Alexander Butterfield didn’t have anything to do: Alicia Shepard, “The Man Who Revealed the Nixon Tapes,” Washington Post, June 14, 2012, https://www.washingtonpost.com/opinions/the-man-who-revealed-the-nixon-tapes/2012/06/14/gJQAsEZUdV_story.html/.
“I was sort of surprised”: Ibid.
When he was finally asked if he would speak: Ibid.
But when Butterfield: Ibid.
Alexander Butterfield was no willing: Ibid.
“The President would personally listen”: Bob Woodward and Carl Bernstein, The Final Days (Simon & Schuster, 1976), p. 62.
The president’s advisers ultimately deemed: Ibid., p. 63.
When Cox: Ibid., pp. 68–72.
But once investigators: Nixon Articles of Impeachment.
In Article III: Ibid.
To quote Senator Lindsey Graham: Ryan Bort, “Impeachment Inquiry: Lindsey Graham Argued for Congressional Oversight.”
the whistleblower details an operation: Whistleblower Complaint, p. 3.
Once members: King et al., “Acting DNI Defends His Role In Handling Of Whistleblower Complaint.”
The stated reason for doing so: Ibid.
The Justice Department j
oined: Alexander Mallin, “Trump’s DOJ Clears President of Violating Campaign Finance Law in Ukraine-Biden Call—ABC News,” ABC News, September 25, 2019, https://preview.abcnews.go.com/Politics/trumps-doj-clears-president-violating-campaign-finance-law/story?id=65849857.
This decision didn’t make any sense: Zoe Tillman, “The Justice Department Has Argued Sex, Information, And Worthless Stock Were ‘Things Of Value.’ But It Said Trump’s Request For Dirt Wasn’t,” BuzzFeed News, October 3, 2019, https://www.buzzfeednews.com/article/zoetillman/justice-department-trump-call-ukraine-thing-value.
Moreover, a longstanding: Neal Katyal and Joshua Geltzer, “Opinion | Was There Another Cover-Up In Response to the Whistle-Blower?,” New York Times, October 2, 2019, https://www.nytimes.com/2019/10/02/opinion/trump-whistleblower-fec.html/.
Trump has claimed: David A. Graham, “The Mystery of the Ukraine-Call Transcript,” Atlantic, October 4, 2019, https://www.theatlantic.com/ideas/archive/2019/10/do-we-actually-know-what-happened-zelensky-call/599359/.
There are also three sets of ellipses: Carol D. Leonnig, Craig Timberg, and Drew Harwell, “Odd Markings, Ellipses Fuel Doubts about the Rough Transcript of Trump’s Ukraine Call,” Washington Post, October 2, 2019, https://www.washingtonpost.com/technology/2019/10/03/odd-markings-ellipses-fuel-doubts-about-rough-transcript-trumps-ukraine-call/.
Even before President Trump’s: Neal Katyal. “Trump’s Abuse of Executive Privilege Is More Than a Present Danger.” New York Times, July 17, 2019. https://www.nytimes.com/2019/06/17/opinion/trump-executive-privilege.html/.
“In defending Trump”: David A. Graham, “Trump’s Defeat on Tax Returns Signals a Big Problem for the President,” Atlantic, October 7, 2019, https://www.theatlantic.com/ideas/archive/2019/10/marrero-ruling-trump-cy-vance-immunity/599536/.
On indictment: Renae Reints. “Why Couldn’t Mueller Indict Trump? This DOJ Policy Prevented Him.” Fortune, May 30, 2019. https://fortune.com/2019/05/30/indict-a-sitting-president-doj-policy/.
Nixon differentiated himself from his predecessors: Marc Fisher, “‘He Ignores the Law When He Doesn’t like It,’” Washington Post, September 23, 2019, https://www.washingtonpost.com/politics/when-the-president-does-it-that-means-its-not-illegal/2019/09/22/62559ea6-dcb8-11e9-ac63-3016711543fe_story.html/.
In the wake of Nixon’s resignation: Neal Katyal, “Opinion | Trump’s Abuse of Executive Privilege Is More Than a Present Danger,” New York Times, June 17, 2019, https://www.nytimes.com/2019/06/17/opinion/trump-executive-privilege.html/.
The exception: Assertations of Executive Privilege from Kennedy to Obama, Reporters Committee for the Freedom of the Press, https://www.rcfp.org/journals/assertions-executive-privileg/.
Clinton’s use of executive privilege: Katyal, “Opinion | Trump’s Abuse of Executive Privilege Is More Than a Present Danger.”
Shortly thereafter, President Trump tweeted: “Donald J. Trump on Twitter: ‘I Would Love to Send Ambassador Sondland, a Really Good Man and Great American, to Testify, but Unfortunately He Would Be Testifying before a Totally Compromised Kangaroo Court, Where Republican’s Rights Have Been Taken Away, and True Facts Are Not Allowed out for the Public . . . ,’” Twitter, October 8, 2019, https://twitter.com/realdonaldtrump/status/1181560708808486914.
That same day: “Letter from White House Counsel Pat Cipollone to House leaders,” Washington Post, October 8, 2019.
Cipollone’s eight-page letter: David A. Graham, “Trump’s Obstruction Letter,” The Atlantic, October 9, 2019, https://www.theatlantic.com/ideas/archive/2019/10/trump-letter-promises-complete-obstruction/599689/.
On the other hand: Andrew Desiderio, and Kyle Cheney. “House Lawyers: Trump Trying to ‘Obstruct His Own Impeachment.’” Politico, October 16, 2019. https://www.rollingstone.com/politics/politics-news/oh-nothing-just-trump-fantasizing-about-executing-spies-behind-the-whistleblower-complaint-891093/.
Indeed, they recently: Spencer S. Hsu. “U.S. Judge Balks at Justice Dept. Bid to Deny House Access to Mueller Grand Jury Materials.” Washington Post, October 8, 2019. https://www.washingtonpost.com/local/legal-issues/us-judge-balks-at-justice-dept-bid-to-deny-house-access-to-mueller-grand-jury-materials/2019/10/08/bd0de590-e9c6-11e9-9c6d-436a0df4f31d_story.html/.
While none of Special Counsel Mueller’s findings: Robert S. Mueller III, “Report on the Investigation into Russian Interference in the 2016 Presidential Election,” March 2019, https://www.documentcloud.org/documents/5955118-The-Mueller-Report.html/.
by claiming Adam Schiff: Isaac Stanley-Becker, “Trump says ‘treason.’ His fans invoke violence. How attacks against Schiff are escalating online,” Washington Post, October 14, 2019, https://www.washingtonpost.com/politics/trump-says-treason-his-fans-invoke-violence-how-attacks-against-schiff-are-escalating-online/2019/10/14/9f613974-ec4c-11e9-9306-47cb0324fd44_story.html/.
by calling the impeachment probe a “coup”: David A. Graham, “Trump’s Defeat on Tax Returns Signals a Big Problem for the President,” The Atlantic, October 7, 2019,
As John Dean: George T. Conway and Neal Katyal, “Trump has done plenty to warrant impeachment. But the Ukraine allegations are over the top,” Washington Post, September 20, 2019, https://www.washingtonpost.com/politics/trump-says-treason-his-fans-invoke-violence-how-attacks-against-schiff-are-escalating-online/2019/10/14/9f613974-ec4c-11e9-9306-47cb0324fd44_story.html/.
4. Questions and Answers
How does impeachment actually work: Charles L. Black and Philip Bobbitt, Impeachment: A Handbook.
After all, the procedures the Senate: Laurence Tribe and Joshua Matz, To End a Presidency: The Power of Impeachment.
As law professor Charles Black wrote: Charles L. Black and Philip Bobbitt, Impeachment: A Handbook, p. 14.
To quote Senator Lindsey Graham: Ryan Bort, “The Best Argument Against the White House Stonewalling Congress Was Made by . . . Lindsey Graham.”
The president cannot easily be compelled: Andy Wright, “Can Congress Subpoena Trump to Testify?,” Just Security, November 27, 2018, https://www.justsecurity.org/61535/congress-subpoena-trump-testify/.
What does the Senate do?: Charles L. Black and Philip Bobbitt, Impeachment: A Handbook.
As soon as the House votes: Ibid., p. 17.
As Chief Justice William Rehnquist: Joan Biskupic. “The Rehnquist Files: How the Last Chief Justice Handled an Impeachment Trial.” CNN, September 29, 2019. https://www.cnn.com/2019/09/29/politics/william-rehnquist-impeachment-trial-senate/index.html/.
The rulebook reads: “United States Senate Manual, 104th Congress-Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials,” govinfo.gov, accessed October 20, 2019, https://www.govinfo.gov/content/pkg/SMAN-104/html/SMAN-104-pg177.htm.
But Senator Mitch McConnell: Ron Elving, “What Happened With Merrick Garland In 2016 And Why It Matters Now,” NPR, June 29, 2018, https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now.
The good news is: Marianne Levine, “McConnell: Senate Would Have ‘No Choice’ but to Take up Impeachment,” Politico, September 30, 2019, https://politi.co/2nRiCIi.
As McConnell wrote in a fundraising pitch: Anna Kaplan, “Mitch McConnell in Campaign Ad: Impeachment Will Fail ‘With Me As Majority Leader,’” Daily Beast, October 5, 2019, https://www.thedailybeast.com/mitch-mcconnell-in-campaign-ad-impeachment-will-fail-with-me-as-majority-leader.
As law professor Charles Black argues: Charles L. Black and Philip Bobbitt, Impeachment: A Handbook, p. 17.
There are no requirements: “Impeachment Time Line—Andrew Johnson,” US National Park Service, accessed October 20, 2019, https://www.nps.gov/anjo/learn/historyculture/impeachmenttimeline.htm; Jon Meacham et al., Impeachment: An American History; “A Timeline of How the Clinton Impeachment Went Down,” CNN, September 25, 2019, https://www.cnn.com/politics/live-news/trump-impeachment-inquiry-09-25-2019/h_f5b7df188bc47c1da03d9ea6f5503cef.
Speaker Pelosi and congressional leadership: Mike DeBonis a
nd Rachel Bade: “Pelosi, top Democrats favor quick, narrow Trump impeachment probe focused on Ukraine,” Washington Post, September 25, 2019, https://www.washingtonpost.com/powerpost/pelosi-privately-urges-narrow-trump-impeachment-probe-focused-on-ukraine/2019/09/25/c65b6f0c-dfab-11e9-be96-6adb81821e90_story.html/.
The Supreme Court ruled: “Hearings Before the Senate Impeachment Trial Committee, United States Senate, One Hundred Eleventh Congress, Second Session, on the Articles of Impeachment Against Judge G. Thomas Porteous, Jr. a Judge in the United States District Court for the Eastern District of Louisiana,” November 16, 2010.
This is in line with: Charles L. Black and Philip Bobbitt, Impeachment: A Handbook, p. 48.
That’s another reason that the Supreme Court: “Hearings Before the Senate Impeachment Trial Committee, United States Senate, One Hundred Eleventh Congress, Second Session, on the Articles of Impeachment Against Judge G. Thomas Porteous, Jr. a Judge in the United States District Court for the Eastern District of Louisiana,” November 16, 2010.
To quote Vice President Mike Pence: Ari Melber. “Mike Pence Address to Congress on Impeachment.”
As I wrote in Chapter 2: Christopher Klein, “The United States Began Protecting Whistleblowers in 1777,” History, accessed October 16, 2019, https://www.history.com/news/whistleblowers-law-founding-fathers.
“whistleblowers play a vital”: Brief of Members of Congress as Amici Curiae in Support of Respondent, Department of Homeland Security v. MacLean, 7, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/11/13-894-bsac-Members-of-Congress.pdf.
President Obama and Congress: Michael E DeVine, “Intelligence Community Whistleblower Protections” (Congressional Research Service, September 23, 2019), https://fas.org/sgp/crs/intel/R45345.pdf.
By contrast, President Trump: Shannon Pettypiece, “Trump Says Those Who Gave Info to the Whistleblower Are like Spies, Reports Say,” NBC News, September 26, 2019, https://www.nbcnews.com/politics/white-house/trump-says-our-country-stake-whistleblower-account-made-public-n1059011.